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Unorthodox Law

I’m not in the habit of pumping other scholars’ stuff, least of all scholars with whom I often disagree and with whom I compete for ssrn rankings. I’ll cheerfully make an exception for Abbe R. Gluck, Anne Joseph O’Connell, and Rosa Po, on “Unorthodox Lawmaking, Unorthodox Rulemaking.” Excerpt from the abstract:

Major policy today is often the product of unorthodox lawmakingand unorthodox rulemaking”—deviations from traditional process marked by frequent use of omnibus bills and multiple agency implementation; emergency statutes and regulations issued without prior comment; outsourcing to lawmaking commissions and unconventional delegates; process shortcuts outside of emergencies; presidential policymaking; and outside drafters, some nonpartisan and others hyperpartisan. These unorthodoxies are everywhere, and they have shifted the balance in the elected branches and beyond, often centralizing power in actors—like party leadership and the White House—not traditionally part of the core lawmaking and rulemaking processes.

None of this is news to consumers of this blog. However, especially for those consumers, this article is must-read: wide-ranging; erudite and well-informed; mercifully free from both the tendentiousness and the pretentious “conceptualization” jazz that, alas, characterizes much of the academic debate about these issues.

The obvious question is how do we get this “unorthodox” stuff under control? The authors note that formal, rule-of-law-ish constraints have tended to produce yet more unorthodox practices. That’s empirically right—and it’s a powerful reason for rule-of-law types to think beyond formalisms, about institutions and incentives.

The second half of the article is mostly for AdLaw dorks. (It’s a law review article, for Pete’s sake.) For those so inclined, though, the article—judicious throughout, though not always consonant with my own judgments and intuitions—holds important insights and ample food for thought. For example, its doctrine—not text or precedent, let alone some abstruse meta-theory of interpretation—that governs this universe and determines what happens within it. And the big doctrinal questions

likely have remained unanswered [by the courts] because the stakes are so high. For instance, there have been questions lurking beneath the surface of legislation theory for some time about the source of the doctrines of statutory interpretation. Courts have been reluctant to acknowledge those rules as “federal common law” … It has been much easier for federal courts to embrace the fiction that their interpretive doctrines derive from Congress itself: specifically, that they simply are reflective of congressional drafting practice. That is clearly not the case, and may never be the case. But for courts to use legal doctrine to directly try to influence the frequency or type of unorthodox policymaking would be for courts to acknowledge they are playing a much bigger role in this landscape than they have wished to acknowledge or take on.

Jackpot: totally right, on multiple counts. Now, think.

Reader Discussion

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on January 14, 2016 at 10:37:56 am

[T]here have been questions lurking beneath the surface of legislation theory for some time about the source of the doctrines of statutory interpretation. Courts have been reluctant to acknowledge those rules as “federal common law” … It has been much easier for federal courts to embrace the fiction that their interpretive doctrines derive from Congress itself: specifically, that they simply are reflective of congressional drafting practice. That is clearly not the case, and may never be the case. But for courts to use legal doctrine to directly try to influence the frequency or type of unorthodox policymaking would be for courts to acknowledge they are playing a much bigger role in this landscape than they have wished to acknowledge or take on.

Wow.

I’m reminded of the rise of Karl Llewellyn’s/Legal Realism’s view of commercial contracts: Yes, we have theories about how contracts are formed, the meeting of minds, etc. But real-world examples of contracts that actually conform to the theory are “scarcer than bald eagles.” Indeed, most contracts are drafted by the seller and unread by the buyer; it is less a matter of meeting of minds than of assumption of risk. And this realization finally overcame the theoretical objections (dare I say, libertarian objections?) to the regulation of consumer contracts.

That said, I sense Scalia’s views of statutory construction don’t reflect myths about congressional drafting practices, but rather game theory: By declaring a rather ridged method of interpretation (e.g., excluding consideration of unilateral statements in the Congressional Record), he tells Congressmen et al. that they cannot hope to win in court what they could not achieve in plain statutory language. This focuses all parties’ attentions on trying to influence text a priori, not influence judges ex posteriori.

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nobody.really
on January 14, 2016 at 13:21:20 pm

Hmmm!

Interesting article at SSRN.

As nobody comments, this is an attempt to describe the "realities " of current lawmaking. ( And to think, I had some sausage for breakfast, yukkk!) The authors appear to do an admirable job in detailing the now *unorthodox" law / rulemaking that has befallen the Republic.

Yet:
1) The use of the term "unorthodox" perhaps conceals as much as it reveals. given a certain cultural affinity we Americans may have for the "unorthodox or novel, it tends to understate the enormity of the departure from that which was (and ought to be) expected of the Legislative process. consider, if the descriptor were instead, "unlawful" or "unconstitutional"
2) If the latter terms, would we be so willing to accept as sufficient the claim of expediency / efficiency as justification for all of these "unorthodoxies"?
3) If the two ACA decisions, wherein the Court effectively rewrote the statute via some rule(s) of interpretation, is not an example of the undue (and needless?) complexity confronting the Courts from this new "unorhtodox" methodology, I simply do not know what would be properly so characterized.
4) We may argue all we want about Federal Common Law as a result of statutory interpretive methods (and / or decisions resulting therefrom), the fact remains that a body of judicial interpretations and pronouncements has been developed which serve as precedent for all future controversies. Sadly, as the authors point out, these interpretive methods and decisions may very well (in fact are most certainly) predicated upon a fallacy - lawmaking is now even more arduous and dissipated that the "sausage making" of old as it now includes all elements of the production AND consumption cycle.

Of course, it is at this late date far too optimistic to expect that we could (or even want to) return to those" glory days of yesteryear" when our elected representatives (and our jurists) felt compelled to view all legislation through the prism of delegated powers outlined / granted in our constituent law. Instead, it appears as if we are determined to transform constituent law into common law.
Oh, all the better, I suppose, to benefit the "common man."

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gabe

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